In the Supreme Court of Illinois...provisions. See Hanson v. Lumley Trucking, LLC, 403 Ill.App.3d 445, 449 (5th Dist. 2010) (upholding the clear and unambiguous anti-stacking provision

No. 124649

In the

Supreme Court of Illinois

LORETTA HESS, as GUARDIAN OF THE ESTATE OF MEADOW HESS,

a Minor Child; CHAD HESS, Individually and as INDEPENDENT ADMINISTRATOR OF THE

ESTATE OF SIERRA HESS, Deceased;

and PAULINE KISELEWSKI, as INDEPENDENT ADMINISTRATOR

OF THE ESTATE OF RICHARD KISELEWSKI, Deceased,

Plaintiffs-Appellees,

v.

STATE AUTO INSURANCE COMPANIES d/b/a MERIDIAN SECURITY INSURANCE

COMPANY,

Defendant-Appellant,

and

THE ESTATE OF TJAY KLAMM,

Defendant.

_____________________________

On Appeal from the Appellate Court of Illinois, Fifth Judicial District, Case No. 5-18-0220.

There Heard On Appeal from the Circuit Court of the Second Judicial Circuit, Franklin County, Illinois, No. 16 L 25.

The Honorable Erik J. Dirnbeck, Judge Presiding.

REPLY BRIEF OF DEFENDANT-APPELLANT

Of Counsel:

ROBERT MARC CHEMERS

JONATHAN L. FEDERMAN

ROBERT MARC CHEMERS

[email protected]

JONATHAN L. FEDERMAN

[email protected]

PRETZEL & STOUFFER, CHARTERED

One South Wacker Drive

Suite 2500

Chicago, Illinois 60606

(312) 346-1973

Attorneys for Defendant-Appellant

Meridian Security Insurance Company

ORAL ARGUMENT REQUESTED

COUNSEL PRESS ∙ (866) 703-9373

PRINTED ON RECYCLED PAPER

E-FILED9/11/2019 8:35 AMCarolyn Taft GrosbollSUPREME COURT CLERK

SUBMITTED - 6522093 - Robert Chemers - 9/11/2019 8:35 AM

124649

ARGUMENT

Plaintiffs argue that there are multiple ambiguities in the Meridian

policy, including: (1) multiple statements of liability limits within the

same Declarations; (2) the Declarations state that coverage, not

insurance, is provided where a premium is shown for the coverage; (3)

the liability coverage does not have a single limit restriction as uninsured

(“UM”) and underinsured coverage (“UIM”) have a single limit; and (4) the

policy does not restrict coverage to the automobile involved in the

accident (BR. OF APPELLEES at 8).

Notably, the Plaintiffs no longer claim that the Amended

Declarations or the Second Amended Declarations apply.

Plaintiffs fail to propose any reasonable alternative interpretation

of the policy from the sole reasonable interpretation which Meridian

presents. “Whether an ambiguity exists turns on whether the policy

language is subject to more than one reasonable interpretation. Although

‘creative possibilities’ may be suggested, only reasonable interpretations

will be considered.” Hobbs v. Hartford Insurance Co. of the Midwest, 214

Ill.2d 11, 17 (2005). Listing potential sources of an ambiguity does not

suggest an alternative interpretation. “Courts should not strain to find

ambiguity where none exists.” Justin Time Transp., LLC v. Harco Nat’l Ins.

Co., 2014 IL App (5th) 130124, ¶ 39; Striplin v. Allstate Ins. Co., 347

Ill.App.3d 700, 702 (2d Dist. 2004). Plaintiffs do not present even a

creative possibility of an alternative interpretation, let alone a reasonable


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alternative interpretation. As such, Meridian asks this Court to reverse

the Appellate Court’s holding that the Meridian policy bodily injury

liability limit stacks twice.

A. The Meridian Policy Clearly Prohibits the Stacking of Bodily

Injury Limits of Liability.

Plaintiffs offer no response to Meridian’s argument that the policy

contains a clear and unambiguous anti-stacking provision which

prohibits the stacking of the bodily injury limit of liability. The policy

states:

LIMIT OF LIABILITY

A. The limit of liability shown in the Declarations

for each person for Bodily Injury Liability is our maximum limit of liability for all damages, including damages for care, loss of services or

death, arising out of “bodily injury” sustained by any one person in any one auto accident.

Subject to this limit for each person, the limit liability shown in the Declarations for each accident for Bodily Injury Liability is our

maximum limit of liability for all damages for “bodily injury” resulting from any one auto accident.

* * *

This is the most we will pay regardless of the number of:

1. “Insureds”;

2. Claims made:

3. Vehicles or premiums shown in the Declarations; or

4. Vehicles involved in the auto accident.


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(C141-42; C252-53).1

Courts have consistently upheld and enforced anti-stacking

provisions. See Hanson v. Lumley Trucking, LLC, 403 Ill.App.3d 445, 449

(5th Dist. 2010) (upholding the clear and unambiguous anti-stacking

provision in the policy); Busch v. Country Financial Ins. Co., 2018 IL App

(5th) 140621 (holding that the insurer was entitled to enforcement of its

unambiguous antistacking provisions to the extent that such provisions

represented terms to which the parties had agreed to be bound); Domin

v. Shelby Ins. Co., 326 Ill.App.3d 688, 694 (1st Dist. 2001) (holding that

the anti-stacking provision was unambiguous and the that the insureds

could not stack coverage).

The policy’s anti-stacking language is clear and unambiguous.

There can be no stacking or aggregating of the limit of liability, and the

limit of liability for only one auto applies. There can be no interpretation

of this language other than a claimant cannot add the limit of liability for

the other covered autos listed on the Declarations to obtain more

coverage than provided for the one auto involved in the accident. Even

though there are four vehicles listed on the Declarations, the only bodily

injury limit of liability available here is that for the 2006 Chevrolet Cobalt

which was operated at the time of the accident.

Plaintiffs ignore this provision of the policy and fail to offer even a

skeletal argument that the anti-stacking provision does not apply.

1 “(C__)” is a reference to the Common Law Record.


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Pursuant to the unambiguous anti-stacking language, only the bodily

injury limit of liability for the Chevrolet Cobalt is applicable to the

Plaintiffs’ claims as that was the auto involved in the accident.

1. Bodily Injury/Liability Coverage Limits of Liability should

not be Stacked.

i. Meridian did not Waive or Forfeit its Argument that

Liability Coverage should not be Stacked.

Plaintiffs claim that the question of whether bodily injury liability

coverage may be stacked has been forfeited (BR. OF APPELLEES at 22-23).

Plaintiffs misapply the forfeiture doctrine. “Forfeiture is the failure to

comply timely with procedural requirements in preserving an issue for

appeal.” JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill.2d 455,

475 (2010).

Meridian did not forfeit or waive any argument that the bodily

injury limits of liability may not be stacked. Rather, Meridian has

consistently argued that the bodily injury limit of liability may not be

stacked because the Declarations and the policy provisions are

unambiguous (C298-318). Meridian continues to argue that the

Declarations and the policy provisions are unambiguous so that the

bodily injury coverage may not be stacked. Contrary to the Plaintiffs’

argument, Meridian is not raising the issue for the first time.

Meridian has consistently argued that the Declarations and policy

provisions are unambiguous as there is no reasonable alternative

interpretation other than the only limit of liability available to the


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Plaintiffs is that for the Chevrolet Cobalt, as that was the vehicle involved

in the accident. The argument that the bodily injury limit of liability may

never be stacked, as it attaches to the vehicle and not the insured so

there can never be an ambiguity, further demonstrates the merits of

Meridian’s position. As detailed below, every jurisdiction that has

considered whether bodily injury limits of liability in one policy covering

multiple vehicles has uniformly held that no ambiguity existed. Those

authorities clearly support Meridian’s argument that there is no

ambiguity to permit stacking bodily injury liability coverages. Plaintiffs’

claim that the issue has been forfeited is meritless and should be

rejected.

In the alternative, even if Meridian forfeited the issue, which

Meridian denies, waiver and forfeiture is a limitation on the parties, not

the Court. People v. Bolden, 197 Ill.2d 166, 178 (2001). The Court may,

in its discretion, and on such terms as it deems just, enter “any judgment

and make any order that ought to have been given or made *** that the

case may require.” Ill. Sup. Ct. R. 366(a)(5). A “court of review may

override considerations of waiver or forfeiture in the interests of achieving

a just result and maintaining a sound and uniform body of precedent.”

Jackson v. Bd. of Election Comm’rs, 2012 IL 111928, ¶ 33. Each

jurisdiction that has considered whether bodily injury limits of liability in

one policy covering multiple vehicles has uniformly held that there is no

ambiguity. In the interests of achieving a just result, this Court should


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consider whether bodily injury limit of liability should ever be stacked as

the only limit of liability applicable is that associated with the vehicle

involved in the accident.

Meridian has not forfeited any argument and has consistently

claimed that there is no reasonable interpretation of the policy to support

stacking. In the alternative, in the interest of achieving a just result, this

Court should consider the issue.

ii. Bodily Injury/Liability Coverage Limits of Liability

should not be Stacked.

Plaintiffs argue that there is no per se rule to prohibit stacking of

liability coverages (BR. OF APPELLEES at 27). This argument misconstrues

Meridian’s position. Meridian claims that bodily injury coverage limits of

liability may not be stacked because there is no reasonable interpretation

of the policy in which the claimant could ever conclude that the liability

limits of a vehicle not involved in the accident would apply. Plaintiffs’

argument focuses on the very few exceptions in which courts have

permitted stacking of liability coverages (none with facts similar to those

here). Plaintiffs ignore that other jurisdictions have uniformly rejected

stacking bodily injury liability limits when one policy covers multiple

vehicles and only one of the covered vehicles was involved in the accident,

as here. Those jurisdictions demonstrate that there is no reasonable

alternative interpretation of the policy to support stacking.

Plaintiffs cite Nationwide Agribusiness Ins. Co. v. Dugan, 810 F.3d

446 (7th Cir. 2015) (BR. OF APPELLEES at 25-26, 28). Dugan involved


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separate UIM limits of liability, not bodily injury coverage. Id. at 448-49.

Dugan does not support Plaintiffs’ position as it does not involve bodily

injury coverage.

Plaintiffs cite Cameron Mut. Ins. Co. v. Madden, 533 S.W.2d 538

(Mo. 1976) (BR. OF APPELLEES at 29). Yet, in Madden, the Court considered

whether medical coverage could be stacked, not bodily injury. Id. at 545.

Plaintiffs ignore Dutton v. Am. Family Mut. Ins. Co., where the Missouri

Supreme Court barred stacking as to two separate policies’ liability limits

purchased by the same insured as only one vehicle was involved in the

accident. 454 S.W.3d 319, 327 (Mo. 2015). Madden does not support the

Plaintiffs’ argument, and Dutton supports that bodily injury liability limits

may not be stacked as there is no ambiguity.

Plaintiffs cite another Missouri case, Karscig v. McConville, 303

S.W.3d 499 (Mo. 2010) (BR. OF APPELLEES at 27). Yet, in Karscig, the

operator of the vehicle had an “operator’s policy” while the owner of the

vehicle maintained a separate “owner’s policy” and the Court permitted

the two individual’s separate $25,000 policies to be stacked, as the

Missouri statutory scheme mandated each of those policies have a

minimum of $25,000 coverage. Id. at 505. Once again, the Plaintiffs fail

to acknowledge that in Dutton, the Missouri Supreme Court barred

stacking as to two separate policies’ liability limits purchased by the same

insured as only one vehicle was involved in the accident. 454 S.W.3d at

327. Here, unlike in Karscig, there is no separate policy at issue with a


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statutorily required liability limit and, as in Dutton, only one vehicle was

involved in the accident. Karscig does not support the Plaintiffs’ claim

and Dutton supports Meridian’s position.

Plaintiffs cite Owners Ins. Co. v. Anderson, 756 So. 2d 29 (Fla.

2000) (BR. OF APPELLEES at 27), however, in Anderson, the policy covered

both a tractor and a trailer involved in the same accident. Id. at 31. The

Florida Supreme Court first held that the tractor and trailer should each

be considered a separate covered automobile and then held that both

limits of liability applied as there were multiple insured automobiles in

the same accident. Id. at 34. Here, it is undisputed that only the Chevrolet

Cobalt was involved in the accident, and none of the other covered

vehicles were involved. Anderson does not support Plaintiffs’ position as

it is distinguishable.

Plaintiffs falsely claim that most of the cases cited by Meridian do

not involve liability coverage on a single policy (BR. OF APPELLEES at 7).

See Stevenson v. Anthem Casualty Ins. Group, 15 S.W.3d 720, 722 (Ky.

1999) (barred stacking of liability coverages of four separate vehicles

covered under a single policy); Cross v. Warren, 2019 MT 51, ¶ 15 (same);

Oarr v. Government Employees Ins. Co., 39 Md. App. 122, 132-33 (barred

stacking of liability coverages of two separate vehicles covered under a

single policy); Ruppe v. Auto-Owners, 329 S.C. 402, 407 (S.C. 1998)

(same); Payne v. Weston, 195 W. Va. 502, 509 (W. Va. 1995) (same);

Grinnell Select Ins. Co. v. Baker, 362 F.3d 1005, 1007 (7th Cir. 2004)


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9

(same); Hilden v. Iowa Nat’l Mut. Ins. Co., 365 N.W.2d 765, 769 (Minn.

1985) (barred stacking of liability coverages of three separate vehicles

covered under a single policy); Maher v. Chase, 52 Mass.App.Ct. 22, 26

(2001) (same); See also, Houser v. Gilbert, 389 N.W.2d 626, 629 (N.D.

1986) (barred stacking of liability coverages of two vehicles both involved

in the same accident covered under a single policy (the policy covered six

total vehicles)).

Plaintiffs do not cite any authority to support an argument that

bodily injury limits of liability may be stacked for an accident involving

one covered vehicle under a single policy which covers multiple vehicles,

as here.

Plaintiffs attempt to distinguish the persuasive authority cited by

Meridian by claiming that none of those cases held that bodily injury

liability may not be stacked (BR. OF APPELLEES at 26). Plaintiffs again fail

to cite any authority permitting bodily injury liability limits to be stacked

when one covered vehicle was involved in an accident and there were

multiple vehicles covered under the same policy, as here. Furthermore,

the Plaintiffs’ argument is demonstrably wrong.

The Kentucky Supreme Court noted that the “overwhelming

majority of jurisdictions which have addressed the issue prohibit

stacking of liability coverages ***” and held that the liability coverages of

four separate vehicles in one policy could not be stacked. Stevenson, 15

S.W.3d at 722 n.1-n.3.


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The Maryland Court of Special Appeals recognized that “where the

issue of ‘stacking’ liability coverage has been considered and decided, the

courts, with near uniformity, have held the first party coverage cases to

be inapplicable and have found the policy to be unambiguous and to

preclude ‘stacking.’” Oarr, 39 Md. App. at 130.

The Wisconsin Supreme Court noted that stacking “is logical when

the insured has two or more insurance policies protecting against the

same loss” but liability coverage only insures “against liability arising

from the operation of the vehicle specified in the policy owned by the

policyholder” and barred stacking of liability coverages. Agnew v. Am.

Family Mut. Ins. Co., 150 Wis. 2d 342, 349-50 (Wis. 1989).

The Nevada Supreme Court held that “the stacking of coverages

determined by this Court to be applicable to uninsured motorist coverage

and basic reparation benefits has no application to motor vehicle bodily

injury liability insurance” and barred stacking such coverages. Rando v.

California State Auto, Ass’n, 100 Nev. 310, 317-18 (Nev. 1984).

The Montana Supreme Court barred liability coverage as it follows

the vehicle and does not follow the insured to provide coverage outside of

an accident arising out of the use of a vehicle. Cross, 2019 MT 51, ¶ 18.

See also, Hilden, 365 N.W.2d at 769 (noting liability coverage follows the

vehicle and not the person and there can be no stacking of liability

coverage); Maher, 52 Mass.App.Ct. at 26 (only one of three automobiles


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involved in the accident and only that automobile’s bodily injury coverage

available).

Plaintiffs cite the South Carolina Appellate Court decision in Ruppe

v. Auto-Owners Ins. Co., 323 S.C. 425 (Ct. App. 1996), erroneously

claiming that in South Carolina stacking of liability coverages is allowed

but can be prohibited by contract (BR. OF APPELLEES at 26). The South

Carolina Supreme Court overruled the Appellate Court in Ruppe v. Auto-

Owners Ins. Co., 329 S.C. 402, 407 (S.C. 1998). In fact, the South

Carolina Supreme Court noted that liability coverage “is limited to the

particular vehicle for which it is purchased” and that the “extent of

liability coverage is thus statutorily defined by the amount of coverage on

the insured vehicle and does not encompass coverage applicable to other

vehicles.” Id. at 406 (emphasis in original).

Contrary to the Plaintiffs’ argument, the afore foreign authorities

clearly barred stacking of liability coverages. These persuasive authorities

will assist this Court to find that the bodily injury limit of liability cannot

be stacked as the Plaintiffs could never reasonably conclude that the

limits of liability for any vehicle, other than the one involved in the

accident, would ever apply to their claims.

Plaintiffs cite Lucero v. Northland Ins. Co., 2015-NMSC-011,

claiming that the opinion is distinguishable (BR. OF APPELLEES at 28).

Meridian did not cite Lucero and it is not clear why the Plaintiffs attempt


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to distinguish a case not relied on by Meridian. In any event, Lucero does

not support that bodily injury limits of liability may be stacked.

Plaintiffs fail to respond to Meridian’s argument that the Illinois

Legislature has created a statutory scheme to differentiate between

UM/UIM and liability coverage, similar to other states, in which liability

coverages have not been permitted to be stacked. See Stevenson, 15

S.W.3d 721-22; Dutton, 454 S.W.3d at 322; Ruppe, 329 S.C. at 406.

Plaintiffs argue that the Legislature, and not this Court, should

determine whether bodily injury liability limits may be stacked (BR. OF

APPELLEES at 23). This argument is meritless. Plaintiffs’ argument relies

on canons of statutory interpretation (BR. OF APPELLEES at 24), yet the

issue before the Court does not involve statutory interpretation. This

Court previously provided the proper legal framework to determine

whether stacking is appropriate, and that framework is whether there is

an ambiguity to support stacking. Bruder v. Country Mutual Insurance

Co., 156 Ill.2d 179 (1993); Hobbs v. Hartford Insurance Co. of the Midwest,

214 Ill.2d 11 (2005).

Meridian’s position is that the Court should continue to apply the

same framework to find that the bodily injury limit of liability is not

ambiguous, because there is no reasonable reason that a claimant would

ever look to the bodily injury limit of liability for a vehicle which was not

involved in the accident. Contrary to the Plaintiffs’ claim, Meridian is not

asking the Court to make or change public policy. Rather, Meridian is


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asking the Court to apply public policy as proscribed by the Legislature

which differentiates UM/UIM and liability coverages. This Court has

already held that anti-stacking provisions do not contravene public

policy. Hobbs, 214 Ill.2d at 17-18. As more fully articulated in Meridian’s

opening Brief, the Legislature also set forth a statutory scheme in which

bodily injury coverage attaches to a vehicle, while UM/UIM coverage

attaches to the individual. As bodily injury coverage attaches to the

specific vehicle, there can be no ambiguity as to whether multiple limits

of liability may possibly apply, and claimants, such as the Plaintiffs, can

only reasonably conclude that the limit of liability associated with the

vehicle involved in the accident applies.

B. The Declarations are not Ambiguous.

1. There is no Ambiguity as to the Limit of Liability Listed

Within the Declarations.

Curiously, the Plaintiffs first attempt to claim Meridian’s argument

is “a referendum on Bruder” (BR. OF APPELLEES at 7). Meridian does not

argue that Bruder v. Country Mutual Insurance Co., 156 Ill.2d 179, 193

(1993), is incorrect or should be overturned. Rather, Meridian argues that

the Bruder dicta does not support stacking here, because there is no

ambiguity within the Declarations.

Plaintiffs agree that no per se rule exists in Illinois that the listing

of multiple limits of liability automatically creates an ambiguity (BR. OF

APPELLEES at 7). Plaintiffs concede that the policy and Declarations


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language “is nearly identical to the analysis in a multitude of other cases

construing antistacking language” but claim the “significant difference is

that unlike those policies where the per person bodily injury limit was

only listed once, in this case, it is listed twice with four individual

premiums” (BR. OF APPELLEES at 12). Plaintiffs then argue that because

the limits are listed twice in the Declarations, “[n]o real interpretation of

the Meridian policy language is needed, reasonable or otherwise” as the

“policy states the limit is shown in the Declarations and the Declarations

has multiple limits reflected (BR. OF APPELLEES at 14). Plaintiffs’ position

would create a per se rule that multiple limits of liability create an

ambiguity, which this Court has expressly cautioned against. Hobbs v.

Hartford Insurance Co. of the Midwest, 214 Ill.2d 11, 26 n.1 (2005).

Rather, the proper framework is whether the policy language is subject

to more than one reasonable interpretation. Id. at 17; Bruder, 156 Ill.2d

at 193.

Plaintiffs cite to the lower courts holdings in support of claiming

that an ambiguity exists (BR. OF APPELLEES at 12-13). Yet, the Plaintiffs

agree that the standard of review is de novo (BR. OF APPELLEES at 8). Under

de novo review, the reviewing court does not have to give the lower court’s

ruling any deference. Brunton v. Kruger, 2015 IL 117663, ¶ 72. Rather,

this Court must determine whether the policy offers only one reasonable

interpretation. Furthermore, neither the trial court nor the Appellate

Court identified any ambiguity and Meridian contends that the lower


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courts erred by incorrectly applying a per se rule and each failed to utilize

the appropriate framework set forth in Bruder and Hobbs.

In its opening Brief, Meridian argued that the Declarations, which

consists of two relevant physical pages, has only one reasonable

interpretation, which is that the Declarations unambiguously provides

the maximum limit of liability for all four covered vehicles is $100,000

per person and $300,000 per accident.

Plaintiffs’ position requires a finding that either Meridian’s

interpretation is not reasonable, or that there is an alternative reasonable

interpretation to create an ambiguity. Notably, the Plaintiffs do not argue

that Meridian’s interpretation in unreasonable. Plaintiffs also fail to

present any alternative interpretation, let alone a reasonable alternative

interpretation. Rather, the Plaintiffs contend that there is an ambiguity

because the limit of liability is listed one time each on two consecutive

pages in the Declarations (BR. OF APPELLEES at 15). What then is the

ambiguity? There is none.

The anti-stacking provision informs the reader that the limit of

liability shown in the Declarations for each person for bodily injury is the

maximum limit of liability for all damages and is the most Meridian will

pay regardless of the number of vehicles or premiums shown in the

Declarations. Turning to the Declarations, the Chevrolet Cobalt is listed

as “Auto 2.” Below that, the Declarations provide that “COVERAGE IS

PROVIDED WHERE A PREMIUM IS SHOWN FOR THE COVERAGE” and


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lists “Auto 2” as a premium for “LIABILITY – BODILY INJURY” as

$100,000 EACH PERSON/$300,000 EACH ACCIDENT.” The only

reasonable interpretation is that the limit of liability for bodily injury for

an accident involving the Chevrolet Cobalt is $100,000 per person. The

anti-stacking provision clearly limits the maximum liability, regardless of

the number of vehicles or premiums shown in the Declarations.

2. The Table in the Declarations is not Ambiguous.

Plaintiffs argue that the Declarations table is ambiguous (BR. OF

APPELLEES 15-18). This argument is meritless. This Court has already

expressly approved the same format used in the Declarations in Bruder

v. Country Mut. Ins. Co., 156 Ill.2d 179, 191 (1993). Plaintiffs claim that

the difference here is that there are multiple pages of declarations with

multiple limits and statements of coverage (BR. OF APPELLEES at 15-16).

Plaintiffs cite Hall v. General Cas. Co., 328 Ill.App.3d 655 (5th Dist.

2002), attempting to distinguish that decision (BR. OF APPELLEES at 17).

However, Meridian did not cite Hall and this Court expressly overruled

Hall in Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill.2d 11, 27

(2005). It is unclear why the Plaintiffs offer argument based on Hall.

Plaintiffs incorrectly imply that Hobbs overruled Hall because the

declarations in Hall used language such as “insurance is provided”

instead of “coverage is provided” (BR. OF APPELLEES at 17). In fact, Hobbs

overruled Hall because the interpretation adopted in Hall read the

antistacking clause completely out of the policy. Hobbs, 214 Ill.2d at 27.


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Plaintiffs also concede that the language used in the Declarations here,

does not create an ambiguity, but instead argue that the policy “restates

the limits more than once” (BR. OF APPELLEES at 17). As argued, supra,

there is no per se rule that multiple listings of liability limits

automatically create an ambiguity, but rather there must be a reasonable

alternative interpretation.

Plaintiffs also claim that the liability limit for one vehicle should be

aggregated four separate times (BR. OF APPELLEES at 18). Plaintiffs fail to

provide any alternative interpretation, let alone a reasonable

interpretation to support stacking the coverages twice, let alone four

times. Plaintiffs fail to offer even a feeble explanation as to how the policy

and Declarations could be read to support stacking the bodily injury limit

of liability four times, as it is undisputed the limits of liability are listed

only once and repeated on two separate physical pages of the

Declarations. Rather, the Plaintiffs appear to argue that the inclusion of

a premium within the table supports stacking the coverages (BR. OF

APPELLEES at 18), yet Plaintiffs fail to cite any authority in support of their

argument, which has been expressly rejected by this Court.

In Bruder, this Court considered virtually the same table as in the

Meridian Declarations. 156 Ill.2d at 189. This Court noted that the

declarations page consisted of a series of columns. Id. at 191. From left

to right, the columns were structured so that reading to the right from

the entry for the year and make of each covered vehicle at the left, the


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premium charged and the total for each vehicle appeared in a line, like

words in a sentence. Id. The only difference is that, here, the table was

repeated on a separate physical page to include a fourth auto.

In Bruder, the Court also noted that “[u]nderstanding the

arrangement of entries in the columns is important in determining the

effect of what is not there included.” Id. at 192. The limits of liability were

not set out within the column arrangements in the same manner as the

declaration page listed the premium amounts and totals of each covered

vehicle. Id. There was no column “for which the limit of liability for bodily

injury is to be listed like a premium amount so that the $100,000 limit

for each person would appear in both sentence-like lines for the pickup

trucks.” Id. Bruder held that the declarations page was subject to only

one reasonable interpretation, limiting recovery to the sole limit of liability

which appeared outside of the columns, “no matter how many vehicles

are listed in the column arrangement and no matter how many premiums

are paid.” Id. at 194.

As in Bruder, there is no ambiguity in the Declarations. The

Declarations track the precise format this Court expressly approved in

Bruder. As in Bruder, Meridian used columns indicating the vehicles for

which a premium was paid for coverage. As in Bruder, there is only one

reasonable interpretation which is that the policy provides only $100,000

each person/$300,000 per accident for bodily injury coverage no matter

how many vehicles are listed in the column arrangement and no matter


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how many premiums were paid. Plaintiffs’ argument is unsupported by

any authority and relies entirely on the false premise that merely listing

the limits of liability more than once creates an ambiguity.

3. It is Irrelevant that the Declarations Lists the

Uninsured/Underinsured Limit Differently than the “Bodily Injury” Limit.

Plaintiffs argue that there is no reason to restate the table on the

second physical page of the Declarations, acknowledging that the policy

does not duplicate the previously listed “autos” or “premiums” (BR. OF

APPELLEES at 11). Plaintiffs point out that the UM/UIM limit of liability is

not repeated on the separate physical pages of the Declarations (BR. OF

APPELLEES at 11). Plaintiffs repeat this argument in an apparent attempt

to claim that the difference between UM/UIM and bodily injury limits of

liability creates an ambiguity (BR. OF APPELLEES at 14-15, 18-21).

Plaintiffs’ argument here is meritless as there is no reason that the

Plaintiffs would have looked to the second physical page of the

Declarations to determine the limit of liability available for bodily injury

sustained in an accident involving the Chevrolet Cobalt, which is listed

as “Auto 2” in the Meridian policy. There is no reasonable interpretation

that the coverage associated with Auto 4 on the second physical

Declarations page could apply to an accident involving the Chevrolet

Cobalt. This argument ignores that Meridian simply did not have space

to list four automobiles within the table on one physical page.


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Plaintiffs argue that the separate listing as to UM/UIM coverage

and bodily injury liability indicates an intent to aggregate liability limits

(BR. OF APPELLEES at 18). Plaintiffs’ argument ignores the distinction

between UM/UIM coverage and bodily injury liability coverage. As

articulated in Meridian’s opening Brief, bodily injury coverage attaches

to the specific vehicle, while UM/UIM attaches to the insured. Kopier v.

Harlow, 291 Ill.App.3d 139, 142 (2d Dist. 1997); West v. Am. Std. Ins.

Co., 2011 IL App (1st) 101274, ¶ 10. There is no possibility of an

ambiguity as to bodily injury coverage as a claimant should only look to

the vehicle involved in the accident to determine if there is coverage and

if so, what the limits of liability are for the specific vehicle involved in the

accident. For UM/UIM coverage, however, the claimant must determine

the limits of liability available, and if there are multiple limits listed, there

is a reasonable alternative interpretation that each separate limit may

apply. Plaintiffs ignore the distinction between bodily injury coverage and

UM/UIM coverage, and their argument should fail.

Plaintiffs also claim that the format is a violation of the premium

rule (BR. OF APPELLEES at 19). The “premium rule” provides that “it is

unfair to permit an insurer to collect premiums, be it for coverage

afforded under separate policies or for separate vehicles under one policy,

and thereafter apply a provision limiting or absolving liability.” Bruder v.

Country Mut. Ins. Co., 156 Ill.2d 179, 184 (1993). Bruder expressly

rejected that anti-stacking provisions conflict, per se, with the “premium


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21

rule.” Id. See also, Busch v. Country Financial Ins. Co., 2018 IL App (5th)

140621, ¶ 14 (the premium rule is not violated by barring stacking as “it

is the law in Illinois that an insurer is entitled to the enforcement of

unambiguous provisions to the extent that such provisions represent

terms to which the parties have agreed to be bound”). Plaintiffs offer no

argument as to why it would be reasonable to conclude that the limits of

liability as to the three other vehicles insured by Meridian, which were

not involved in the accident, could possibly apply to an accident involving

the Chevrolet Cobalt. Plaintiffs’ argument should be rejected.

Plaintiffs mistakenly claim that there are three reasonable

interpretations, as demonstrated by: (1) the trial court’s holding; (2) the

Appellate Court’s holding; and (3) Meridian’s position (BR. OF APPELLEES

at 19-20). Plaintiffs’ argument is meritless as neither the trial court nor

the Appellate Court identified any ambiguity, but rather simply held there

was an ambiguity. Plaintiffs fail to cite to the Record in support of any

findings made by the trial court, likely because the trial court made no

express findings, but stated that “[f]or the reasons presented and set forth

in Plaintiffs’ oral and written arguments, the policy herein taken as a

whole, is ambiguous and will therefore be construed in a manner most

favorable to Plaintiffs” (C355-56).

Meridian’s position is that the lower courts erred by essentially

adopting a per se rule that the separate listing of the limits of liability on

two physical pages results in an ambiguity. The proper framework,


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22

however, is to determine whether there are multiple reasonable

interpretations of the policy to support stacking. Furthermore, the

standard of review is de novo and this Court owes no deference to the

lower courts’ rulings. Brunton v. Kruger, 2015 IL 117663, ¶ 72.

Plaintiffs fail to offer any alternative interpretation, let alone a

reasonable interpretation, to conclude that the limits of liability for three

vehicles not involved in the accident could be stacked with the bodily

injury liability coverage for the Chevrolet Cobalt.

C. Meridian did not Violate any Industry Standard.

Plaintiffs argue that Meridian violated a “known industry standard”

(BR. OF APPELLEES at 8, 13, 20).

First, while it is unclear what industry standard Meridian

supposedly violated, the Plaintiffs have forfeited or waived this argument

as they did not previously raise this argument. See Marshall v. Burger

King Corp., 222 Ill.2d 422, 430 (2006) (argument made for the first time

on appeal was forfeited).

Second, the Plaintiffs do not identify what the “known industry

standard” is, nor do they explain how Meridian violated this supposed

standard. Plaintiffs do not cite to any authority in support as to what this

mythical standard is and they fail to explain how the failure to conform

to some unstated standard created an ambiguity to permit stacking the

bodily injury liability coverage for the Chevrolet Cobalt with three

separate vehicles’ coverages as there is no dispute those three separate


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23

vehicles were not involved in the accident. A “court of review is entitled

to have the issues clearly defined and to be cited pertinent authority.”

Dillon v. Evanston Hosp., 199 Ill.2d 483, 494 (2002). Plaintiffs’ argument

is unclear, unsupported by authority, and meritless as there is only one

reasonable interpretation of the policy: that only the Chevrolet Cobalt

involved in the accident provides coverage for bodily injury liability, and

the limit of liability for bodily injury coverage is $100,000 per

person/$300,000 per accident. As the Plaintiffs have not properly

developed this argument nor cited any relevant authority, they have

waived the argument. See Canteen Corp. v. Dep’t of Revenue, 123 Ill.2d

95, 112 (1988) (failure to cite to relevant authority supporting the

argument resulted in waiver of argument).

Plaintiffs forfeited any argument as to failure to conform to some

unstated industry standard or, in the alternative, waived such argument

as they fail to properly develop or cite support regarding the argument.

In any event, there is only one reasonable interpretation of the policy,

which is that the $100,000 per person/$300,000 per accident bodily

injury limit of liability for the Chevrolet Cobalt applies to the bodily injury

suffered in the accident involving the Chevrolet Cobalt.

D. Stare Decisis does not Apply as the Supreme Court has Never Held that Bodily Injury Limits of Liability may be Stacked.

Plaintiffs cite a litany of opinions regarding the rules as to stare

decisis (BR. OF APPELLEES at 32-33). Reliance on these citations is

misplaced as Plaintiffs have failed to cite any Illinois Supreme Court


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24

decision that permitted stacking of bodily injury coverages. Absent

precedent to support the Plaintiffs’ claim, stare decisis is inapplicable.

See People v. Smith, 163 Ill.App.3d 806, 809 (3rd Dist. 1987) (stare decisis

inapplicable as previous decisions not squarely on point and

distinguishable). Meridian’s position is based on the absence of any

reasonable interpretation of the policy to support stacking. Plaintiffs’

contention should be disregarded as stare decisis is inapplicable to this

dispute.

CONCLUSION

For each the aforesaid reasons, this Court should reverse the

Appellate Court’s judgment modifying the circuit court’s judgment to

stack the limit of liability twice as the policy clearly and unambiguously

prevents stacking of bodily injury limits of liability. This Court should

enter judgment for Meridian Security Insurance Company and tax costs

against the Plaintiffs.

Respectfully submitted:

/s/ Robert Marc Chemers_____________ Robert Marc Chemers

([email protected]) Jonathan L. Federman ([email protected])

PRETZEL & STOUFFER, CHARTERED One South Wacker Drive

Suite 2500 Chicago, IL 60606 (312) 346-1973

Attorneys for Defendant-Appellant Meridian Security Insurance Company


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25

Of Counsel: Robert Marc Chemers Jonathan L. Federman


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26

Supreme Court Rule 341(c) Certificate of Compliance

I certify that this brief conforms to the requirements of Rules 341(a) and (b), and 343. The length of this brief, excluding the words containing

the Rule 341(d) cover, the Rule 341(c) certificate of compliance, the certificate of service, and those matters to be appended to the brief under Rule 342(a), is 5,795 words.

/s/ Robert Marc Chemers_________

Robert Marc Chemers

Robert Marc Chemers ([email protected]) Jonathan L. Federman

([email protected]) PRETZEL & STOUFFER, CHARTERED

One South Wacker Drive Suite 2500 Chicago, Illinois 60606

(312) 346-1973 Attorneys for Defendant-Appellant Meridian Security Insurance Company


124649

NOTICE OF FILING and PROOF OF SERVICE

In the Supreme Court of Illinois

LORETTA HESS, etc., et al., ) )

Plaintiffs-Appellees, )

)

v. ) No. 124649

)

STATE AUTO INSURANCE COMPANIES d/b/a )

MERIDIAN SECURITY INSURANCE COMPANY, )

)

Defendant-Appellant, )

and )

)

THE ESTATE OF TJAY KLAMM, )

)

Defendant. )

The undersigned, being first duly sworn, deposes and states that on September 11, 2019, there was

electronically filed and served upon the Clerk of the above court the Reply Brief of Defendant-

Appellant. Service of the Brief will be accomplished by email as well as electronically through the

filing manager, Odyssey EfileIL, to the following counsel of record:

SEE ATTACHED SERVICE LIST

Within five days of acceptance by the Court, the undersigned states that 13 paper copies of the

Brief bearing the court’s file-stamp will be sent to the above court.

/s/ Robert Marc Chemers

Robert Marc Chemers

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the

undersigned certifies that the statements set forth in this instrument are true and correct.

/s/ Robert Marc Chemers

Robert Marc Chemers


124649

SERVICE LIST

P. Jay Schafer

Winters, Brewster, Crosby and Schafer LLC

111 West Main

P.O. Box 700

Marion, Illinois 62959

Phone: (618) 997-5611

Fax: (618) 997-6522

Email: [email protected]

(Counsel for Loretta Hess, as Guardian of the Estate of Meadow Hess)

Aron Hopkins

402 East Main

West Frankfurt, Illinois 62896

Phone: (618) 932-3900


(Counsel for Leonard Klamm and Doris Klamm)

Joseph Bleyer

Bleyer & Bleyer

P.O. Box 487

601 West Jackson Street

Marion, Illinois 62959

Phone: (618) 997-1331

Fax: (618) 997-6559


(Counsel for Dawn Keller)


124649

In the Supreme Court of Illinois...provisions. See Hanson v. Lumley Trucking, LLC, 403 Ill.App.3d 445, 449 (5th Dist. 2010) (upholding the clear and unambiguous anti-stacking provision

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